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No. 64-109 

A Corporation , 

Plaintiff-Appellee , 

-vs - 


Defend ant -Appellant . 

Appeal from the 
Circuit Court for the 
Third Judicial Circuit, 
Madison County, 


This is an appeal by the defendant-appellant, 
Hugh Major, from a Judgment of the Circuit Court of Madison 
County, Illinois in a case tried before the court without a 
jury, wherein judgment was entered for the plaintiff in the 
amount of $4,876,85 and against the defendant on his counter- 
claim . 

On March 30, 1960 plaintiff filed suit for the 
balance due on a cognovit note given for the sale of two 
Andrews trailers which were repossessed and sold leaving 
a deficiency. Judgment was entered by the court at that 
time for the sum of $3,630.00. Plaintiff then instituted a 

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same condition as it was at the time the agreement to pur- 
chase had been entered into and that it had been damaged 
in the interim to the amount of $850.00; that approximately 
three weeks after the delivery of the second trailer, plain- 
tiff delivered the third trailer to the defendant who paid 
$900.00 down on the second and third trailers; however, 
at that time the plaintiff agreed that the second and third 
trailers were in bad shape and that he woUld sell them to 
some other party so that neither he no^ the defendant would 
lose any money on the trartsadtion; that the fourth trailer 
was never delivered to the defendant although he had paid 
the plaintiff $300,00 as a down payment, given him a note 
for $400.00 and paid one payment of $153.14 to the Union 
National Bank of East St. Louis. Defendant further alleged 
that the plaintiff sold the fourth trailer for the sum of 
$5,000.00 and agreed to settle up the difference with the 
defendant when the deal was completed; that shortly there- 
after, plaintiff sent a man to pick up two trailers which 
had previously been delivered to the defendant, indicating 
that he was buying the trailers and that plaintiff would re- 
fund to the defendant money due him in connection with sales 
and rentals of these trailers; th&t he has paid to the Union 
National Bank of East St. Louis $5,356.59 on contracts in 

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64-109 - 4 

connection with three trailers but the plaintiff had never made 
any settlement with the defendant in that transaction. Defend 
ant then claimed that plaintiff owed him $3 101.84 on the 
sale of one of the trailers, a refund of the down payment 
of $300.00 and the monthly payment of $1S3.14 which was 
paid on the fourth trailer. 

The evidence was in sharp dispute. Plaintiff's 
evidence indicated that on November 9, 1956, defendant 
signed a conditional sales note and contract for the pur- 
chase of a thitty-two foot Dorsey refrigerated trailer for 
a total price of $4,923,00. He testified that the amount of 
down payment indicated on the note, $1,500,00 was not the 
actual amount; that the actual amount of the down payment 
was $500,00, He stated that as a dealer he frequently set 
the price higher to show a higher down payment to make the 
note more acceptable to the bank. On January 7, 1957 de- 
fendant purchased two 1951 thirty-three foot Andrews re- 
frigerated trailers again signing a conditional sales note 
and contract for the purchase. The note for these two trail- 
ers, which is the note upon which the plaintiff brought suit, 
was for a total of $9,200.00. On March 8, 1957, defendant 
co-signed for the purchase of the fourth trailer, a 1951 
thirty-six foot Andrews refrigerated trailer, by one E. Lea 
whom the plaintiff testified was employed by the defendant 

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at the time of the purchase. Plaintiff further testified 
that E. Lea was not an acceptable credit risk and that 
therefore he asked the defendant to sign the note with him. 
Plaintiff further testified that he had not agreed 
with the defendant that the trailers were to have been de- 
livered before the first of the year, that to the contrary, 
they were individual purchases. Plaintiff's evidence and 
testimony indicated that the trailers were in the same con- 
dition when delivered as when they were inspected by the ' 
defendant and that the coolihg unit which was missing firom 
one of the two Andrews trailers when purchased was subse- 
quently replaced. The Dorsey trailer, plaintiff's evidence 
^ indicated, was voluntarily relinquished by the defendant and 
on November 5, 1957, plaintiff entered into a lease-sale 
agreement with the W. T, V^hittington Corporation which 
provided that the lessee was to pay a monthly rental on the 
trailer equal to the amount due under the note which had 
been signed by Major, and when the trailer was paid off, 
title would be transferred to W. T. Whittington, Inc., 
The balance due on this trailer was subsequently paid off 
in this fas hion . 

The thirty-six foot Andrews trailer which was 
signed for by the defendant and E. Lea later disappeared 
along with Mr. E, Lea and was never recovered. The re- 

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maining two thirty-three foot Andrews trailers were re- 
possessed by the plaintiff, being returned to his lot by 
one of the defendant's drivers. On April 4, 1958, plain- 
tiff and other witnesses testified that the plaintiff con- 
ducted a public sale of the two trailers hfter having first 
sent out notices of the sale. On that date one of the 
trailers was sold for $2^050400 and at a later time the 
other was sold for $1,616*50 to the same person who had 
purchasedthe first. 

Paul Woesthaus, Assistant Vice President in 
charge of the Loan Department of the Union National Bank 
was called as a witness for the plaintiff. He testified 
that there were three payments made on the note for the 
two Andrews trailers totaling eleven hundred dollars, 
leaving a balance of eighty-one hundred dollars due on 
the note and contract. He testified further that subse- 
quently trailer number 691 was sold for $2050,00 and 
trailer number 692 was sold for $1616.50. This left a 
deficiency on the note in the amount of $4433.50, Judg- 
ment was entered by the trial court in the amount of 
$4876.85 which included $443.35 for attorney's fees as 
provided by the note. The same witness also testified 
as to payments being made on the 1951 Andrews trailer by 
Mr. E. Lea which would tend to substantiate the plaintiff's 

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64-109 - 7 

version of the purchase of that vehicle. 

The only witness testifying on behalf of the de- 
fendant were the defendant and his wife. The wife testified 
that she kept the books and records on her husband's busi- 
ness but that the only knowledge she had of these trans- 
actions was what her husband had told her. 

The defendant testified that in the fall of 1956, 
he and Mr. Filbey agreed that he would buy the four trail- 
ers; that Filbey would have them ready for him by the first 
of the year because the defendant had a contract to haul 
meat from St. Louis to Chicago for Swift & Company at that 
time. He testified further that he ultimately received only 
three of the trailers, the Dorsey and the two thirty-three 
foot Andrews trailers; that there was a thirty-six foot 
Andrews trailer which he looked at but refused to buy without 
getting the title at the time of the purchase. Therefore, he 
stated, he did not purchase the thirty-si^ foot trailer. He 
stated further that E. Lea did not take the thirty-six foot 
trailer, but took one of the two thirty-three foot trailers 
he had, Filbey having stated that they would prepare new 
contracts to cover this transaction. Defendant stated that 
when he signed the conditional sales notes and contracts 
on the purchase of these trailers, they were in blank and 
not filled in. He stated that at the time of delivery, the 

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64-109 - 8 

Dorsey was in good shape, but the trailer with the cooling 
unit missing was in poor shape and the refrigeration unit 
which was installed in it by the plaintiff did not work pro- 
perly until he expended a large sum of money to have it re- 
paired. He also stated that the tires on one of the two 
Andrews trailers were in "Junk" condition and that they 
had been switched from the time he had first inspected 
the trailer. He testified that of the two Andrews trailers 
he received, Mr, Lea took one on an allegedly new con- 
tract and the other was taken by a Mr, Ford who was 
brought to his place of business by Mr, Filbey for the pur- 
pose of purchasing that trailer. The defendant further 
testified that he was unable to read even though he had 
been in business for most of his life . 

Defendant contends (a) that there was a new 
agreement between the parties because the plaintiff agreed 
to resell the trailers in question to third parties and re- 
lease the defendant of any further obligation if the de- 
fendant would keep the trailers until other buyers were 
found; (b) that the plaintiff was estopped from recovery 
because he induced the defendant to keep the trailers 
with the promise that other parties would be found to buy 
them; (c) that there was breach of an implied warranty 
of fitness; (d) that to establish a valid deficiency, a 

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64-169 - 9 

repossession sale must actually be conducted and must be 
fair; (3) where the facts are not in dispute and their le- 
gal effect becomes a matter of law, the rule as to the 
power of the reviewing court to set aside a decision only 
when it is against the manifest weight of the evidence 
doe s not apply , 

There was disputed evidence concerning each 
of the aforesaid contentions made by the defendant. There- 
fore, this court is bound by the rule of law that the find- 
ings of the trial court will not be disturbed on review 
unless they are clearly contrary to the manifest weight 
of the evidence. Prudenti&l Insurance Co. v, Spain, 339 
111 App 476,483; Olin Industries v. Industrial Commission, 
394 111 202, 2 ILP (Appeal & Error) Sec. 786. 

In the instant case, the trial court, who heard 
the case without a jury, chose to disbelieve the defendant 
and believe the plaintiff. The trial judge saw and heard 
the witnesses and was able to determine which was the 
most worthy of belief. In view of the conflicting versions, 
the trial judge is entitled to choose the version that is 
most credible, and unless completely outside the scope 
of the evidence, his findings should not be disturbed. 
Hall V. Illinois National Ins. Co. , 34 111 App 2d 167. 

After a careful consideration of the record. 

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64-109 - 10 

this court is of the opinion that the judgment of the trial 
court was not manifestly contrary to the weight of the evidence 
Plaintiff's evidence was substantiated not only by exhibits 
but by testimony of other witnesses as well, concerning the 
original transactions, ultimate repossession and sale of the 
repossessed trailers. 

For the foregoing reason*, the cdurt considers it 
unnecessary to consider other points raised on appeal by the 
appellant . 

The decision of the trial court is hereby affirmed. 

Judgment affirmed, 


E dward C. Eberspacher 

Joseph H, Goldenhersh 

Publish abstract only. 

^ ^UG 16 1965 


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Gen No. 64-25 







vs . 





Appellant Carl William Hoffman and Eldon Eugene 
Keel were tried before a jury in the circuit court of Madison 
County on the charge of aggravated battery. Hoffman was 
found guilty and Keel was acquitted. The appellant's 
motion for acquittal or for a new trial, and his application 
for probation were denied and he was sentenced to the Illinois 
State Penitentiary for not less than one year nor more than 
four years . 

Appellant here contends, (1) the State failed to 
prove, beyond a reasonable doubt, that he was not acting in 
self defense and that he committed all the other elements of 
aggravated battery when he shot and wounded Robert C. Jones, 


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No. 64-25 2 . 

and (2) the trial court should have granted his motion for 
acquittal and discharge notwithstanding the verdict of the 
jury, or, alternatively, his motion for a new trial. 

In criminal cases it is the duty of this Court to 
review the evidence, and, if there is not sufficient credible 
evidence, if it is improbable or unsatisfactory, or not suf- 
ficient to remove all reasonable doubt of appellant's guilt 
and create an abiding conviction that he is guilty, the con- 
viction will be reversed. People vs. Sheppard, 402 111. 347; 
People vs. Willson, 401 111. 68; People vs. Coulson, 13 111. 
2d 290 . 

Appellant's uncontradicted testimony is that at 
about 7:15 P.M. on September 20, 1962 appellant and Keel 
were standing at the bar near the front of Sherry's Lounge in 
Granite City; Keel, who had been in Sherry's since 2:00 o'clock 
that afternoon drinking hard liquor, was drunk. Appellant, 
who was 26 years old, had been in Sherry's and had a few 
drinks there, during the afternoon, and left about 4:00 P.M., 
went home and returned to Sherry's to pick up Keel and go to 
Alton to get appellant's other automobile which had been re- 
paired there. Appellant entered Sherry's in the evening with 
a loaded pistol in his Jacket pocket intending to return it to 
party from whom he had previously borrowed it on the way to 
Alton; while seated in Sherry's, drinking beer, he loaned his 
car to a friend to help another party start their car and then 
with Keel went up to the bar. 




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That appellant received a call about 5:30 P.M. 
at his home requesting that the gun be returned and that 
appellant took the gun with him that evening was supported 
by the testimony of his wif e » 

The uncontradicted evidence also disclosed, that 
while standing at the bar with appellant. Keel became noisy 
and threw some glasses in the corner, breaking them; that 
the prosecuting witness Robert Jones, aged 24, was at the 
bar with Gilbert Sava, Peter Caterina and William Porter, all 
of whom were soldiers on duty at the Granite City Army Depot, 
wearing civilian clothes, that Phyllis Malwitz, aged 24, was 
the barmaid on duty, and that she started around the bar when 
Jones offered to clean up the broken glass, and took a broom 
and dust pan, cleaned up the glass, emptied it, and returned 
to the bar; that a few words passed between Jones and Keel, 
Jones asking Keel to be quiet, and Keel asking Jones if he 
could buy him a drink, which Jones declined; that Keel con- 
tinued to be noisy and threw stirrers and straws on the floor, 
which Jones picked up; that Miss Malwitz told Keel to be quiet 
or she would call the police and Keel continued to be noisy, 
and Miss Malwitz took a dime from the register and started to 
the phone booth when Keel followed her to the booth. 

As to what occurred immediately thereafter, there 
is a conflict in the testimony. Jones testified that when Miss 
Malwitz started for the phone booth and Keel followed he 


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No. 64-25 4. 

grabbed Keel in a bear hug and appellant stuck a gun in 
his ribs and said "let him be", that he stepped back, and 
when Keel tried to kick the phone booth door, he and Keel 
again started scuffling, and appellant aimed the gun at Jones' 
head and backed him to the bar; that Sava then tried to get 
the gun from behind but was discovered and ordered to the 
bar and appellant ordered the barmaid out of the booth and 
after a few words to her, said to him "look here you big bas- 
tard" whereupon Jones fearing that appellant would shoot him 
threw a glass of cognac into appellant's face and followed 
through with the glass knocking appellant back and hit appel- 
lant a second time when Keel placed his hand on Jones' shoulder 
and Jones hit Keel, and when Jones turned around four or five 
shots were fired, and the weight of Keel and appellant dragged 
him down; that he then realized that he had been shot and Sava 
hit appellant with a bar stool and appellant ran from the build- 
ing followed by Keel. 

Sava's testimony was substantially the same as Jones' 
except that Jones and Keel were still scuffling when the shots 
were fired . 

Phyllis Malwitz testifed as to the behavior of Keel 
and as to the scuffling between Keel and Jones; that appellant 
knocked on the door of the phone booth and said "get out, you 
might get hurt"; that she left the phone booth and got behind 
the bar and things seemed to have quieted down at that time; 
once behind the bar she heard a short scuffle and then the gun 



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No. 64-25 


shots. She further testified that she did not see Keel when 
she came out of the phone booth and did not notice where 
appellant went, and that she did not actually see any gun but 
heard four shots. After hearing the shots, she crawled over 
the front end of the bar, ran next door and phoned the police. 
As she left the tavern she saw Jones on the floor with his 
buddy over him . 

Appellant testified that when Miss Malwitz went to 
the phone booth Keel apologized and told her he would leave if 
she would not call the police, and Jones grabbed Keel; that he 
then went to the booth and told the girl he was sorry about the 
trouble and that he and Keel would leave if she did not call the 
police; that when she left the booth Keel and Jones let go of 
each other and that he told Jones he was sorry and that they 
(were leaving when Jones hit him on the chin with the glass, 
freaking It and cutting his chin and forced him down on his 
buttocks; that Jones was over him with the remains of the glass 
in his hand when he pulled the gun from his pocket and shot 
Jones. Appellant testified that he did not know whether Jones 
stumbled over his feet and fell with him, or whether Jones was 
deliberately coming at him; that all he knew was that Jones was 
over him with the broken glass in his hand, that he feared being 
cut again and pulled the pistol out of his pocket and fired. 

After leaving the tavern appellant threw the gun away, 
went to Keel's home where Keel ' s .mother washed off his face 


No. 64-25 6 . 

and applied tape. He and Keel then went to East St. Louis 
to the home of a friend, where he changed clothes, and were 
driven to Alton, where he picked up the repaired car, stayed 
in Alton overnight and then, because he was scared, went to 
Peoria, returning to Granite City a day and a half later when 
he surrendered to the police. 

Caterina, who was with Jones, Sava , and Porter in 
Sherry's, testified that he moved away from the disturbance 
and when he saw the gun he ducked; that he overheard no con- 
versation but remained at the bar when Jones first left it, saw 
Jones fighting and that no shots had been fired when he last 
saw Jones and that upon the shots being fired he ran out the 
front door. 

Porter had left the jurisdiction at the time of the 
trial did not testify. 

Jones denied that he ground the glass into appellant's 
face but stated on cross-examination that he would have had 
he had the opportunity. The evidence disclosed that appellant 
Hoffman was five feet six inches tall and weighed 148 pounds, 
and that Jones was six feet two inches tall and weighed 220 
pounds. Medical evidence disclosed that Jones was shot from 
the front three times; he had a flesh wound of the left shoulder 
and two chest wounds. The bullets had traveled up and through, 
indicating they entered his body at a level higher than that 
from which they were fired. Jones also received a fracture of 
the left fibula, which was not caused by gunshot. 


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No. 64-25 


All the elements of an aggravated battery are 
present. That defendant must be proved guilty beyond a 
reasonable doubt is conceded. Whether the shooting was 
justified under the law of self defense was a question of 
fact to be determined by the jury» We will not reverse the 
judgment of conviction on the ground that the evidence is 
insufficient to sustain the finding of guilty, unless there 
is- reasonable and well-founded doubt of the auilt of the 
accused and the finding is palpably contrary to the weight 
of the evidence. People vs. Griffin, 48 111. App . 2d 148. 

In this case the evidence becomes conflicting only 
for the few minutes immediately preceeding the shooting. 
It Is uncontradicted that Keel had become intoxicated and un- 
ruly, and that Keel and Jones had been involved in physical 
contact and argument prior to the glass throwing incident, 
brought on by appellant's injecting himself into a quarrel 
that was not his. The physical contact with Keel was not 
of such nature that there was any justifiable fear of bodily 
harm to him. Jones had not talked to appellant nor had appellant 
needed to be involved. Appellant would have had the jury be- 
lieve that when he tried to apologize to Jone? for Keel's be- 
havior, that Jones made an unprovoked assault upon him. The 
People's evidence was that Jones threw the glass, because 
appellant had a gun pointed at him and he was afraid of being 
shot. Even though appellant denied that he drew the gun or 



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No. 64-2 5 8 . 

forced Jones back to the bar there is sufficient evidence 
to discredit the denial. No facts or circumstances are 
shown that would lead the jury to believe that Jones would 
only scuffle and attempt to restrain the principle trouble 
maker by a bear hug and then viciously attack appellant 
when he was merely apologizing for his friend's behavior 
and attempting to get him to leave the premises. When the 
evidence is conflicting, the credibility of the witnesses 
and the weight of their testimony are questions for the jury. 
People vs. Lobb, 17 111 2d 287. 

When at gunpoint appellant forced Jones back to 
the bar, in a matter in which he was not involved, he became 
an aggressor. The reason for appellant's having a loaded gun 
on his person is not important in this case, but the fact that 
he had it, and used it in a quarrel that was not his own, is 
of major importance. The fact that appellant, after the shoot- 
ing, threw away the gun and fled, and whether his actions 
were those of one who was justified under the law in shooting 
were all proper questions for the jury to consider. 

Where evidence relating to material facts in issue 
is in direct conflict and cannot be reconciled, it is the duty 
of the jury to determine the credibility of the witnesses and 
the weight to be given their testimony, and the reviewing court 
will not substitute its judgment for that of the court or jury. 
People vs. Coulson, supra; People vs. Tensley, 3 111 2d 615. 


t ,' 

No. 64-25 9 . 

The requirement that appellant's guilt be proved beyond 
a reasonable doubt does not mean that the jury must dis- 
regard the inferences that flow normally from the evidence 
before it. Here not only the People's evidence, but the 
inferences from all the evidence pointed toward a lack of 
justification, and appellant's guilt. The jury was not re- 
quired to search out a series of potential explanations com- 
patible with innocence and elevate them to the status of a 
reasonable doubt. People vs. Russell, 17 111 2d 328; People 
vs. Owens, 23 111 2d 534. 

After reading the record we cannot say that the 
jury's verdict is based upon compassion for the prosecuting 
witness or passion or prejudice against this appellant. The 
jury found there was an aggravated battery without justification 
and the trial judge has approved that verdict. 

The judgment of the circuit court of Madison County 
is affirmed. 

Nojt to be published in full. 
Concur: y^_L/ _J^_§^^i)^_il_t_G^_l.d e n h e_r_s_h_ 
Concur ;/S/ C . E . Wright 


SEP 18 1965 




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Plaintiff "Appellee , 



Defendant-Appellant , 

This is an appeal from a $55600 judgment, based upon a jury 
verdict, for injuries sustained when plaintiff fell in defendant's store 
while purchasing food, and from the order denying defendant's post-trial 

Plaintiff's Complaint stated that defendant had a duty to 
exercise ordinary care and not permit ice, snow or other similar slippery 
matter to accumulate and form puddles on the floor; that plaintiff was in 
the exercise of due care; that defendant permitted ice, snow and other 
slippery material to accumulate and remain on the floor of said store; 
that defendant by its agents and employees knew or, in the exercise of 
due care 5 should have known that plaintiff could not, and did not, have 
knowledge of sai-d dangerous conditions; and that plaintiff walked on said 
floor and was caused to and did slip and fall, sustaining severe injuries. 

Defendant filed an Answer in which it denied that it failed to 
perform its duty; denied that plaintiff was in the exercise of due care; 
denied that defendant negligently permitted ice, snow and other slippery 
material to accumulate and remain on the floor; and denied that the same 
was dangerous. 

Defendant's store is located on the north side of the street 
at 1952 West Lawrence Avenue, Chicago, Illinois. Three or four steps 
inside the entrance door, the aisle makes a right angle turn. Plaintiff, 
a girl of 17 years of age, came into defendant's store to shop. The 
weather was slushy. Plaintiff was wearing pumps with three-inch heels. 
She was not wearing galoshes or rubbers. She entered the store and walked 
four or five steps and at the point where the aisle turns to the right, 


slipped and fell, fracturing her elbow. 

Plaintiff testified that she fell just after she entered the 
store „ She further testified that there was a puddle of muddy water and 
slush at that point, and that the floor where she fell was made of wood 
and dipped a little bit. On cross-examination plaintiff was asked if 
there was anything on the floor other than the puddle of water that had 
accumulated. She replied, "the only thing in use was cardboard; otherwise 
the floor was not covered," 

William Ammons ^, a stock boy employed by defendant, testified 
that in bad weather, moisture would collect at the point where the customer 
fell, and that in bad weather the manager would have one of the boys lay 
down cardboard to absorb the moisture, •• .- 

Ammons was asked why moisture would collect at this point. This 
question was objected to by defendant's counsel. The objection was over- 
ruled by the court. The witness answered, stating, "It would only be 
speculation on my part. I don't know that there was an indenture in the 
floor," An objection to this answer was sustained by the court. The trial 
judge took notes of the testimony during the course of the trial. Notes 
relating to the testimony of Ammons were made a part of the report of 
proceedings for purpose of this appeal. These notes stated: 

Nov, 15, 1958--employed by Jewel at Lawrence Ave, 
store. Floor at entrance is wood. Enter turn right. 
Floor collected moisture and puddles of water in 
rainy weather=-usually put cardboard on floor to 
absorb moisture-*f loor worn=- = low spot = -collects water. 
Cross exam. 

Plaintiff also introduced evidence that other stores in the 
neighborhood placed rubber mats inside the entrance door of their establish- 
ments to collect the slush and water that might accumulate so that the 
entrance of the store would remain dry, 
b Defendant's store did not have either cardboard or rubber mats 
on the floor inside the entrance door the day of the incident. There was 
evidence introduced that defendant's employees mopped the floor twice in 

-3 = 

the course of one hour„ It was not established however, how long, prior 

to the incident J the floor had been mopped. 

Defendant filed motions for a directed verdict and a judgment 
notwithstanding the verdict or in the alternative, a motion for a new 
trials all of which were denied. 

Defendant's theory of the case is one, that evidence of tracked- 
in moisture submitted by plaintiff is not a sufficient basis to submit 
the question of defendants negligence to a jury unless defendant has 
notice of the condition; two, that plaintiff never pleaded any defect in 
the arrangement of the store or in the composition or construction of 
the floor; and three, that plaintiff offered no proof that any of the 
aforesaid defects caused the incident. 

Plaintiff's theory of the case is that the negligence of 
defendant is sufficient in law to sustain the judgment. 

We agree with defendant that water tracked in by customers 
will not impose liability on a defendant ^ unless the defendant has notice 
of the condition. We disagree, however, with defendant's contention 
that the pleadings and proofs submitted by plaintiff did not establish a 
defect in the floor, . ^'■'-■^ 

With respect to the pleadings we agree there were no allegations 
in plaintiff's pleadings that a defect in the floor existed. Any evidence 
introduced by plaintiff, showing a defect, would have been immaterial to 
the issues and subject to objection. Defendant, however, did not object. 
Consequently plaintiff was not put on notice to amend his Complaint, Thus, 
defendant, by not objecting j waived any defect in the pleadings. De Martini 
v. DeMartini , 304 111, App, 165, 171, 26 N,E,2d 167, 170 (1940). 

With respect to the proofs, plaintiff testified that "the floor 
is wood and old and there is a spot where you just have to turn, you have 
no choice 5 and it is just sort of --I don't know what you would call it, 
it dips a little bit," Defendant contends that this testimony relating to 
a defect in the floor was explained on cross-examination when plaintiff, 
in answer to the question = "And you didn't notice anything unusual about 

¥ I 


the floor in this area that we have been calking about other than this 
accumulation of water?" stated "It wasn't covered as it generally was in 
bad weather," In response to the question "You didn't notice anything 
else unusual about it. did you?", plaintiff responded "No, just uncovered." 
We disagree with defendant ''s contention that plaintiff's answers on cross- 
examination explained or in any way contradicted her testimony on direct 
examination that "the floor dips a little bit," 

William Ammons also testified in regard to the alleged defects 
in the floor., The testimony of Ammons relative to this issue is as 
follows : 

"Q. On or about or before November 15, 1958, in your 
duties as a stockboy, who mopped the floors? Did you 
have occasion to inspect the floor at that point? 
A„ No, I never had occasion to inspect it. 

Qc. Did you ever notice the condition of the floor at 
that point? 

Ao I am not quite sure I understand that question. When 
you say; if I notice the condition. 

Q, Well J is there anything different at that point than 
any other part in the immediate area as to the surface 
of the floor? 

Ac In bad weather, rain, and it would collect in there. 
Moisture would collect „ 

Q. Could you tell us why? 

Mr„ Miller; I will object. 

The Court: Overruled. 

The Witness; It would be speculation on my part. I 
don''t know that there was an indenture in the floor, 

Mr, Miller; I will object to the speculation on the part 
of the witness. 

The Court; Sustained, What did you see? 

The Witness; Puddles of water would accumulate as you 
walk in the entrance of the door," 

The trial judge in his notes, wrote down that Ammons testified 

that he usually put cardboard on the floor to absorb moisture and that 

the floor was worn, contained low spots, and collected water. This 

testimony did not appear in the transcript. The trial judge had the notes 

photostated and sent to this court for purpose of this appeal. The 

= 5=. 

transcript was approved subject to the corrected testimony of Ammons 

as stated in his notes. 

Defendant contends that the judge's notes are not part of the 
record and cannot be utilized by this court in arriving at a decision. 
It is a basic principle, that the trial judge, in ascertaining the 
correctness of the transcript of proceedings, can take steps to be 
properly advised of the correctness of the transcript of proceedings. 
One of the steps that might be taken is to interrogate witnesses so that 
the truth of the testimony before the court may be ascertained. People 
V. McConnell . 155 111, 192 (1895), Cf, Feldman v. Munizzo , 16 111. 
App.2d 58, 147 N,E.2d 427 (1957). The lower court did this in the instant 
situation, and found that the transcript omitted certain testimony. The 
judge corrected the transcript by the use of his own notes, and it is 
this corrected transcript which we are asked to review on this appeal. 
We conclude that the testimony of Ammons relating to the defect found in 
the judge -s notes, was properly made part of the transcript of proceedings 
and this evidence, together with the testimony of plaintiff, was sufficient 
to show that a defect existed. We hold that the motion for a judgment 
notwithstanding the verdict was properly refused as the evidence in the 
record, standing alone, and taken with all its intendments most favorable 
to the party resisting the motion, tended to prove the material elements 
of the case. Currie v. Conover , 48 111. App.2d, 200 N.E.2d 620 (1964). 

Defendant also maintains that an instruction on its theory of 

the case, that it was not an insurer of plaintiff '^s safety, was improperly 

refused by the lower court. The instruction stated: 

The store keeper is not an insurer of his customers' 
safety; but owes the duty to use due care to keep the 
premises reasonably safe so that his customer will not 
be injured. The fact that the customers on a rainy 
day track in water so as to make the floor wet is not 
evidence of negligence of the store keeper. 

We disagree with this contention. Illinois Supreme Court Rule 25=1 (a) 

states I 


Whenever IPI does not contain an instruction on a 
subject on which the Court determines that the jury 
should be instructed, the instruction on that subject 
should be simple, brief, impartial and free from 
argument „ 

Defendant's instruction is not simple since it is both negative in 

stating whac the defendant is not and positive in stating what it has a 

duty to do. In the foreward of the Illinois Pattern Jury Instructions, 

it is stated: 

First, the Committee in general has been opposed to 
negative instructions, these instructions which tell 
the jury not to do something. 

The instruction was properly refused by the trial court. • --= 

For the above reasons, the judgment is affirmed. 


BURKE, P.J., and BRYANT, J., concur, 






Plaintiff -Appellant , ) 

V. ) 




Defendants-Appellees „ ) 


This is an appeal from a judgment, based on a jury verdict, 
entered in favor of defendants. 

Plaintiff, Thomas Barrett, was injured in an automobile 
accident on August 21, 1956, at the intersection of Randolph Street and 
Marengo Avenue, Forest Park, Illinois, when the Chevrolet sports coupe he 
was driving was involved in a collision with a Ford station wagon driven 
by defendant Ralph Wallenberg, who was an employee of defendant, Walter 
A. Wodarczik, d/b/a Kool Rite Auto Radiator Service. 

Plaintiff related that in August of 1956, he owned and operated 
a 1955 Chevrolet sports coupe, which he purchased in June of 1955; that 
on the morning of August 21, 1956, he was on his way to work, proceeding 
east on Randolph Street in Forest Park, Illinois; that he came to a 
Refiner's Pride gas station, located on the north side of Randolph, but 
west of and adjacent to the first north-south alley west of Marengo 
(Marengo is a north-south street one block east of the gas station), where 
he purchased gasoline; that he "proceeded to pull out on a southeast angle 
towards Randolph Street'^'; that he stopped as he approached the north curb 
of Randolph; that he looked both ways; that he pulled out into Randolph 
Street and proceeded east at approximately 15 miles an hour; that from the 
time he pulled out of the gas station and turned east, until the moment of 
the impact with defendant's car at Marengo, his speed may have increased 
possibly a mile an hour at the most; that he was approximately 25 feet 
from the west curb line of Marengo when he looked to the right ; that he 
observed a Ford station wagon approximately 50 feet from the south curb 


line of Randolph; that his own vehicle was about 20 feet from the west 

curb of Marengo; and that he looked to the north, to his left and did not 

observe any traffic coming from the north going south. He then testified: 

I proceeded on and looked to the right and I saw this Ford 
coming through the stop sign. Then the Ford came in contact 
with my Chevrolet. The left front bumper (of the Ford) hit 
my door, my only door on the right side. It is a two door 
car..,„It was difficult for me to determine how fast the 
station wagon was traveling at the time he hit me, but he 
was moving at a great rate of speed. 

Plaintiff further testified that at the point of impact he was thrown 

from the driver's seat to the center of his car and that he attempted to 

apply his foot brake. He stated: 

I tried to put my right foot on the brake, and the right 
leg was broken, it was gone. After this I tried to cover 
myself and I threw my left foot up to guide or to brace 
myself and in doing so, I hit my accelerator with my left 
foot.... The next thing I knew we hit the tree, which 
stopped my car. 

The tree was located about 50 feet east of Marengo. 

Plaintiff stated that from the moment of impact until the tim.e 
that his vehicle hit the tree about 50 feet east of Marengo, he did not 
lose consciousness; that when the car struck the tree, his jaw hit the 
radio knob and his teeth hit the dashboard; that he sailed into the right 
hand corner of the car; that he was on the floor when he came to a halt; 
and that he remained in that position for about ten minutes until the 
police came. 

Ralph Wallenberg testified that he was employed as a pickup 
and delivery man in a radiator shop owned by defendant Walter A. Wodarczik. 
d/b/a Kool Rite Auto Radiator Service; that on August 21, 1956, on 
instructions of his employer, he was on his way to make a pickup at Flash 
Auto Body, 112 10th Avenue; that the weather was clear and bright, 
visibility good, and the streets dry; that he had entered Marengo at 
Washington Boulevard, and proceeded north on Marengo about a foot or two 
east of the center line; that he maintained that position continuously 
until he arrived at Randolph; that the highest speed attained in the block 


was about 20 miles per hour; that as he approached Randolph he stopped 
at the stop sign with his front bumper approximately even with the sign 
and the sidewalk; that he stopped there a few seconds to see if any 
traffic was coming from either direction; that he saw three or four 
eastbound vehicles traveling at about 25 to 30 miles per hour; that they 
first came into his vision about a half a block away; that he looked to 
his right and could see Harlem Avenue, about two blocks away; that he did 
not remember seeing any westbound traffic; that he was still stopped and 
remained there a couple of seconds; that the eastbound vehicles cleared 
the Marengo "Randolph intersection; that he pulled up to the curb and 
stopped again; that his auto was then a foot or two east of the center 
of Marengo; that he was there about a second or two; that he saw nothing 
coming from his left or his right; that from the time he traveled the 20 
feet from the stop sign to the curb, he saw no more traffic; that he 
traveled the 20 feet at about two miles an hour; that after his second 
stop, he started to pull out to make a left turn at Randolph; and chat he 
pulled out at a "slow rate" into the intersection. 

He further testified that after he got into the intersection 
he saw a car coming from the west; that he didn'^t know where it came 
from; that it was about 50 feet away from him when he first saw it; that 
the other car was traveling at a fast rate; that when he first saw the 
car he had a clear view to the west on Randolph; that his own car, 
preparing to turrt left on Randolph, was at a slight angle to the west, 
that when he first saw the other car, his Ford was about two feet south 
of the Randolph center line; that there was an impact at about the 
instant he applied his brakes; that after he hit his brakes he traveled 
about one or two feet; that the eastbound vehicle continued to come east, 
that the left front bumper guard of his Ford came in contact with the 
right front bumper and the whole side of the Chevrolet; that immediately 
after the impact, the Chevrolet swerved to the left "a little bit"; that 
defendant's vehicle did not swerve in any direction; and that his Ford 


was damaged from the left front bumper to the right fender. 

Howard Selzer testified on behalf of defendants that he was 
traveling westbound on Randolph Street east of Marengo; that plaintiff's 
automobile did not appear to decrease speed up to the time of impact 
with the tree; and that defendant Wallenberg went more than 1/2 way into 
the outer lane. 

The jury rendered a verdict of not guilty in favor of 
defendants upon which judgment was entered. Plaintiff's post trial 
motion was denied. 

Plaintiff's first allegation of error is that the trial court 
permitted defendant's counsel to cross-examine plaintiff repetitious ly 
while restricting plaintiff's counsel on cross-examination of defendant. 
Defendant's counsel was permitted to ask plaintiff several times whether 
or not plaintiff "^s statement, that his left leg hit the accelerator 
causing the car to pick up speed, should have been given in plaintiff's 
discovery deposition. We agree with defendant's position that the cross- 
examination of plaintiff was within the rule of evidence permitting a 
party to be discredited by the failure to state a fact when it is incumbent 
to state such a fact, if it is true, Carroll v. Krause , 295 111. App. 
552, 561, 15 N.E.2d 323 (1938). Furthermore, the amount of repetition 
allowed by a trial court is within its sound discretion. Buck v. Haddock , 
67 111. App. 466 (1896) affmd., 167 111. 219, 47 N.E. 208 (1897). 

Plaintiff's next allegation of error is that the trial court 
permitted improper inquiry of prior accidents not connected with the 
instant case. Plaintiff testified on direct examination that he had 
previously injured his right shoulder playing football in 1947. Defendant's 
counsel inquired on cross-examination whether or not plaintiff had been 
in an automobile accident after he received the football injury. 
Plaintiff testified that he was in an accident in August of 1956 in which 
his automobile was hit in the rear end by a Greyhound bus. Plaintiff 
also testified that he was in an accident in February of 1956 caused by 



a blow out which resulted in his automobile hitting a tree, 

A party can inquire into a prior similar occurrence, if the 
inquiry is conducted m good faith, either for the purpose of impeaching 
a witness in the event of a denial or to prove other relevant information. 
Plaintiff contends that no impeachment took place and that any injuries 
incurred in the prior accidents were not relevant to the instant case„ 
We agree with plaintiff that the trial court erred in allowing an inquiry 
into the prior accidents, without connecting them up to the injuries 
sustained in the instant case, Marut v, Costello . 53 111. App.2d 340, 344, 
345, 202 N,E.2d 853 (1964), appeal pending. Supreme Court No, 39144, 
May, 1965, We hold, however, that the error was not prejudicial. 

Plaintiffs next allegation of error is that the trial court 
did not allow plaintiff's counsel to examine a pre-trial statement of 
witness Selzer, Selzer gave a pre-trial statement to defendant a few 
days after the accident. This statement was held in the hands of 
defendant ''s counsel while Selzer was being examined. On cross-examination 
plaintiff's counsel requested the use of the pre-trial statement which 
was denied on the ground it was the work product of defendant and that 
It was not being used to refresh his recollection. We agree with the 
trial court. Plaintiff's demand for the use of the pre-trial statement 
of the accident was properly denied in that there is sufficient evidence 
that the witness testified from his own memory. People ex rel , Morgan 
v, Muliken . 40 111, App,2d 282, 292, 190 N.E,2d 502 (1963), 

Plaintiff's next allegation of error is that the trial court 
allowed defendant's counsel to make improper and prejudicial remarks and 
ask improper questions in the presence of the jury. It could be inferred 
from the remarks of defendant's counsel that plaintiff's counsel had 
coached plaintiff prior to taking the stand. The fact that a witness 
has talked to his attorney, however, may be brought out during the course 
of a trial. The jury has a right to consider that information in deciding 



the weight to be given the testimony of the witness. Plaintiff also 
maintains that defendant repeatedly propounded questions to the 
witnesses in the form of statements. It was brought out, however, by 
defendant's counsel, that plaintiff was also guilty of propounding 
questions in the form of statements. One party cannot assert as error 
that opposing counsel propounded statements in the guise of questions 
where his own attorney 41so made such statements. Chapin v. Foege , 
296 111. App. 96, 109, 110, 15 N.E.2d 943 (1938). 

Plaintiff's next allegation of error is that the trial court 
excluded certain testimony on re-direct examination of a police officer. 
Counsel for plaintiff showed a photograph to the officer, taken after 
the accident, and asked the officer if he could see any skid marks. 
An objection to this question was sustained. We agree with defendant 
that the action of the trial court was proper, Mortvedt v. Western 
Austin Co . , 320 III. App. 337, 50 N.E.2d 764 (1943) (abst.), and 
Button V. Meyer ., 345 111. App. 84, 101 N,E.2d 626 (1951) (abst.). 

Plaintiff's last allegation of error is that the trial court 
ridiculed counsel in the presence of the jury. Plaintiff's counsel 
asked plaintiff if his vehicle had left any skid marks on the street. 
The court sustained an objection to this question and stated that 
inasmuch as plaintiff was on a stretcher he was in no position to know 
if his car had left any skid marks. The court further stated "Let s 
not be ridiculous about it counsel," The propounding of such an 
improper question might merit such a remark from the court. Katsinas 
V, Colgate-Palmolive-Peet Co „ , 299 111. App. 347, 350, 20 N.E.2d 127, 
128 (1939). Further, the question was not preserved for review. 
Public Service Co. v. Leatherbee , 311 111. 505, 508, 143 N.E. 97 (1924). 
Cf. Redwood Sprinkler v. Phillips Co .. 265 111. App. 286 (1932). 

We hold that the allegations of error raised by plaintiff, 

taken cumulatively, are not sufficient to reverse the judgment rendered 

by the lower court. The judgment is affirmed. 

BURKE, P,J., and BRYANT, J,, concur. 


&Z I-A^ ^79 




Plaintiff "Appellant , 


and SIDNEY HIRSCH, as Trustees 
under the Last Will and Testament 
of Harry Hirsch, Deceased, and 
HIRSCH, individually, RUSHBA 
CORPORATION, an Illinois corporation, 
CHICAGO, as Trustee under Trust Numbers 
12280, 12281, 12284, 12296, 12297, 
12328 and 12920, 

Defendants-Appellees , 


This is an appeal by plaintiff from dismissal of his suit 
for the specific performance of a written real estate exchange contract. 

On March 31, 1957, plaintiff, Maurice J, Sherow, and defendants, 
Maurice L. Hirsch, Joseph G. Hirsch, and Sidney Hirsch, as trustees 
under the Last Will and Testament of Harry Hirsch, and Maurice L„ Hirsch 
and Joseph G„ Hirsch, as individuals, and Rushba Corporation, an Illinois 
corporation, entered into a contract to exchange real estate, the subject 
matter of this suit. In addition to the exchange, plaintiff was to pay 
defendant trustees the sum of $13,339.81, 

The parcels of real estate were held in land trusts with The 
Live Stock National Bank of Chicago as Trusceeo Each of the parties had 
a partial interest m some or all of the parcels. An examination of the 
contract reveals that its purpose was to eliminate partial interests and 
place ownership of each parcel in one person. The contract recites that 
the parties warrant that they are the owners of fractional interests in 
the properties involved ^ as set out in a schedule attached to the 
contract, marked "A." This schedule contains a list of eight parcels of 
real estate in five land trusts in the Live Stock National Bank of 
Chicago, The properties are described by street address and trust 



numberSo The dates of the trusts are mentioned. 

The contract then states that the parties desire to exchange 
their partial interests so as to result in holdings as shown on a second 
schedule, marked "B„" After the exchanges, plaintiff was to be the owner 
of four parcels, Joseph G. Hirsch, the owner of one parcel, and Maurice 
L. Hirsch and Rushba Corporation, the owner of three parcels. 

A third schedule, marked "C" or "C~l" sets out the agreed 
prices at which the properties were to be traded, 

A fourth schedule, marked "C-2," consists of a proration 
statement carrying over the agreed exchange valuations from Schedule C-1 
and showing the net valuations of the property involved after making 
deductions for mortgage balances, taxes and other items of proration. 

On the signing of the contract, the parties exchanged 
possession, management and control of the parcels of real estate. Since 
April 1, 1957, the only thing left for the parties to do was to deliver 
deeds to complete the closing under the contract. Plaintiff made 
repeated demands for delivery of the deeds, and defendants refused to 
perform. Plaintiff finally commenced this action for specific performance 
of the contract. 

In the pleadings filed by defendants, and on the hearings 

before the Master, defendants interposed numerous defenses. Some of these 

defenses were that the contract was no longer in force because plaintiff 

was guilty of unreasonable delay; that plaintiff had not complied with the 
requirement of furnishing good title; that plaintiff had not made a proper 

tender of money due from him; that plaintiff had imposed conditions on 

the closing of the deal which he was not entitled to demand; and that the 

contract was not signed by an authorized agent of Rushba Corporation, Ail 

of these defenses were overruled by the Master in favor of plaintiff. 

Since defendants did not object to the Master's action, we shall not 

discuss these points further. 



Other defenses raised by defendants were that the contract 
did not comply with the Statute of Frauds and/or contained a patent 
ambiguity. In support of these defenses they pointed out in their 
pleadings that the property involved was not described adequately in that 
the schedules listing the property showed the various parcels of real 
estate by street number and name of street, but did not show in which 
city, county or state the property was located and did not state any legal 
description. The Master also found in favor of plaintiff as to this 
defense, insofar as it applied to the various parcels of real estate 
shown on Schedules A, B and C. He found that the eight parcels of real 
estate on these schedules were adequately described because the schedules 
also identified the properties by reference to designated land trusts 
bearing specific numbers and dates of trust at The Live Stock National 
Banko The Master found, however, that two parcels of real estate, not 
part of Schedules A, B and C, were inadequately described and did not 
comply with the Statute of Frauds. These two additional parcels appear 
in only one place in the contract, and that is on the proration schedule, 
marked "C-2," where they are referred to as "Arlington" and "Spauldingo" 
This reference is expanded on the supporting sheets to "543 Arlington" 
and "4720 Spaulding„" No further designation is made of them and the 
contract nowhere else refers to them. 

The property at 543 Arlington Place, Chicago, Illinois, is 
held in trust with The Livestock National Bank of Chicago, Trustee under 
Trust No. 12328, The beneficiaries of this trust are Morris Rich and 
Ida Rich, 50%; Maurice L. Hirsch and Ruth Hirsch, 33~l/37o; and Maurice 
L. Hirsch, Joseph G. Hirsch and Sidney H. Hirsch, as Trustees under the 
last will of Harry Hirsch, 16 = 2/37o. After the suit at bar was filed, the 
16-=-2/37<, interest of the Trustees was conveyed to Morris Rich and Ida Rich, 

The property at 4720 North Spaulding Avenue, Chicago, Illinois, 
is held in trust with The Live Stock National Bank of Chicago, Trustee 
under Trust No. 12296o The beneficiaries under this trust are Rushba 


Corporation, 50%; Joseph G. Hirsch 257o; and Maurice L. Hirsch, Joseph 
G. Hirsch and Sidney H. Hirsch, as Trustees under the Last will of 
Harry Hirsch, 257o. 

The Master decided that because Arlington and Spaulding were 
mentioned in the proration schedule, plaintiff was not entitled to 
specific performance of the exchange agreement covering the eight parcels 
He based his decision primarily on the following conclusions: 

8. The acquisition of interests in the properties 
listed in Schedule A involves transfer of interests 
in the 'Arlington' and 'Spaulding' properties. While 
the proposed distribution of settlement balances 
(Schedule C-2) indicates credit balances as to the 
'Arlington' property in M. Hirsch, H. Hirsch and M. 
Rich, and as to the 'Spaulding' property in Rushba 
Corporation, J. Hirsch and H. Hirsch, and while the 
distribution of real estate (Schedule C-2) shows 
dollar credit in the 'Arlington' property in Rushba 
Corporation, J. Hirsch, H. Hirsch and M. Rich, and in 
the 'Spaulding' property in H. Hirsch only, this court 
is asked to decree specific performance in favor of 
the plaintiff without the 'Arlington' and 'Spaulding' 
properties having been made the subject of the exchange 
agreement and without the identification in that agree- 
ment of these properties sufficient to point out those 
properties with any degree of certainty, 

(A) Paragraph 2 of the agreement provides that each 
party agrees that he will exchange his respective 
fractional interests, as aforesaid (referring to 
Schedule A), for other fractional interests of the 
other parties thereto, in accordance with Schedule 
C attached. Schedule C, as that designation was 
written on the typewriter, became Schedule C-1 by 
the addition of the figure '1' in ink, and Schedule 
C-1 does not refer to any 'Arlington' or 'Spaulding' 

9, This Court cannot be required to determine the names of 
the owners of the beneficial interests in the 'Arlington' 
and 'Spaulding' properties by arithmetic calculation from a 
settlement sheet. From the face of the agreement here 
involved, it does not appear which of the defendants, if 
any, holds beneficial interests in the 'Arlington' or 
'Spaulding' properties. Settlement entries are not evidence 
of ownership. The description of these two properties, even 
though settlement sheets show streets and street numbers, 
because no city or village is mentioned, are so uncertain as 
to require parol evidence to locate the properties, and as 
these ambiguities appear on the face of the writing itself. 
the uncertainty in the descriptions cannot be cured by 
extrinsic evidence. 


10„ While no city or village is mentioned as to the 
properties listed on Schedule A, there is a listing of 
trust numbers and a reference to the trustee, The Live 
Stock National Bank of Chicago, in paragraph 9 (a) of 
the exchange agreement , and this furnishes a means of 
identifying the properties with certainty. But with 
reference to the 'Arlington' and 'Spaulding' properties, 
the agreement does not list any trust numbers or the 
name of the trustee. It is true that an amendment to 
the complaint attempts to supply this information, but 
that is extrinsic to the agreement and cannot cure the 
agreement . 

11. This Court cannot decree specific performance in 
favor of plaintiff without decreeing specific performance 
between defendants inter sese since it is obvious from 
the agreement that the trustees were to receive property 
interests in exchange for the interests given up in 6 of 
the 8 properties listed on Schedule A. However, the 
exchange agreement does not on its face describe with 
sufficient certainty the property or properties to be 
received by the trustee or from whom. 

12. Since it is necessary that this Court decree complete 
performance of the exchange agreement, both between plaintiff 
and the defendants, and between defendants inter sese „ and 
since this Court cannot from the face of the exchange agree- 
ment determine which defendant or defendants specifically 
shall convey specific interests in property of specific 
description, plaintiff must fail in his action to compel 
specific performance. 

Plaintiff filed objections to the findings and conclusions of the Master, 

Plaintiff's theory is that the exchange contract is a complete, 

valid and enforceable contract without including the Arlington and 

Spaulding properties and is capable of specific performance. We agree 

with plaintiff. It was the intent of plaintiff and defendants not to 

include the Arlington and Spaulding properties in the exchange. The 

Arlington and Spaulding properties are not listed in Schedules "A," "B" 

and "C." The only reference to them occurs in Schedule C-2. Schedule 

C-2 is not a necessary part of the basic contract as it is a schedule 

of proration. Customarily, prorations result from computations apart 

from any written agreement and need not be attached to the contract. Yet 

in the instant situation the proration schedule was attached to the 

contract and furnishes the one and only reference to Arlington and 

Spaulding. We hold that reference to these two properties has no bearing 

on the exchange contract. 


A further examination of Schedule C-2 reveals that the pro- 
rations on the exchange deal are not altered or in any way affected by 
the listing of Arlington and Spaulding. It shows the computations in 
connection with the exchanges agreed upon in the contract. It starts 
with the valuations for exchange purposes established by Schedule C, 
deducts in each case the mortgage indebtedness, then deducts the net pro- 
rations of rents, taxes and other usual items and arrives at the credit 
settlement balance for each party in each piece of property. It also 
shows the total net equity which plaintiff had in the eight parcels of 
real estate listed on Schedule A. In accordance with the exchange agree- 
ment, he surrendered equities in four of the eight properties: Bernard, 
Yates, Blackstone and Eastwood. In exchange for the surrender of his 
interests in these four properties, he received equities from the defend- 
ants in the other four properties: State, Sheridan, Monroe and 39th=' 
Prairie, as set out in Schedule B. On the consummation of the exchanges,, 
he had the same dollar equity in the properties as he had had before the 
exchanges, (except for $13,339.81, needed to balance the equities which 
plaintiff has agreed to pay), but this equity was concentrated in four 
properties rather than in the eight. He had no interest in Arlington 
and Spaulding before the trade and he acquired no interest in them as a 
result of the trade. He did not convey any of his property in consider- 
ation of any part of Arlington or Spaulding. The valuations placed on 
them did not increase or decrease his liability under the contract. 

Furthermore, the Master made a number of findings bearing on 

this proration schedule. He stated in his report: "... Schedule 0-2 

is a settlement sheet," He specifically found that; "Settlement entries 

are not evidence of ownership." He also found that: 

(a) Paragraph 2 of the agreement provides that each 
party agrees that he will exchange his respective 
fractional interests, as aforesaid, (referring to Schedule 
A) for other fractional interests of the other parties 
thereto, in accordance with Schedule C attached. Schedule 
C, as that designation was written on the typewriter, 
became Schedule C-1 . , . and Schedule C-1 does not refer 
to any 'Arlington' or 'Spaulding' properties. 


Defendants did not file any objections to these findings and they there- 
fore stand unchallenged. 

Furthermore, after the contract had been executed, the parties 
engaged in various activities which clearly show what properties they 
meant as the subject matter of the contract. One example of this appears 
in the negotiations preliminary to the creation of an escrow during the 
summer of 1958o The closing of the deal had been delayed by defendants 
who at the same time were asking for a deposit by plaintiff of the 
$13,339.81 proration item which would be due from him on the closing of 
the deal. A proposal was made that this sum of money be put into a 
special escrow, together with deeds of conveyance and other documents, so 
that the deal could be consummated through such an escrow at a later time. 
Sidney Hirsch, one of the defendants, submitted an escrow agreement. In 
this escrow agreement Arlington and Spaulding were not mentioned, no 
statement was made as to their ownership, no deposit of deeds was called 
for as to these two parcels, and no provision made for title reports on 
these properties. The deal in escrow, as outlined by defendants them- 
selves, contemplated only the eight parcels which are the subject matter 
of the exchange contract. 

Defendants again demonstrated that they did not consider the 
two parcels as part of the exchange contract. Another proposed escrow 
agreement was prepared by the lawyer representing plaintiff and was 
plaintiff's revision of the escrow prepared by Sidney Hirsch. As in the 
version submitted by Hirsch, there was a listing of the eight parcels of 
real estate under the exchange contract, but Arlington and Spaulding 
were not mentioned. This escrow agreement was unacceptable to the 

^^ Hirsches on unrelated grounds; however, no objection was made that Arlingto 
and Spaulding were omitted. 

■ Subsequently, a third escrow agreement was prepared by the 

attorney for The Live Stock National Bank, the proposed escrowee. This 
agreement also listed the five land trusts and the eight parcels of real 


estate covered by the contract. Again no reference to Arlington and 
Spaulding appeared. This escrow agreement was acceptable to both plaintiff 
and defendants, but this took place more than a year after the contract was 
signed. If Arlington and Spaulding were part of the deal, or intended to 
be, one party or the other would have included them in the proposed escrow 
agreement. If there had been an unintentional omission of them by either 
party, this would have been objected to at once. 

Defendants say the escrow agreements were admitted into evidence 
only to show negotiations. We disagree and conclude that they show that 
Arlington and Spaulding were not intended to be included in the exchange 

In still another instance defendants showed that they did not 
consider Arlington and Spaulding as part of the exchange contract. This 
occurred in a proceeding entitled Ida Rich v. Bernard Rich, et al . , 
Superior Court case No. 57 S 7345. This was an action filed in May, 1957 
by Ida Rich, an heir in the estate of Harry Hirsch, seeking a construction 
of the decedent's will. The Hirsches, as Trustees under the will of Harry 
Hirsch, were made parties defendant. In January, 1958, the Trustees filed 
a counterclaim setting out the exchange contract involved in the suit at 
bar, including the schedules attached to it, asking for a determination 
by the court as to their authority to enter into the exchange contract. 
Pending a determination of this counterclaim, plaintiff obtained an order 
in the instant case, restraining defendants from disposing of their respec- 
tive interests in the real estate. The Trustees desired to appeal from 
the entry of such restraining order and filed a petition in the Rich suit 
seeking the guidance of the court. Said petition set forth that in their 
counterclaim, the Trustees had presented the exchange contract involved in 
the case at bar; that under the contract, the Trustees would receive 1007o 
ownership in the Spaulding Building and an interest in the Arlington 
Building; and that an injunction order had been entered in the case at 
bar, restraining them from selling the Arlington property. Paragraph 9 


of the petition stated that the Trustees had conferred with their attorney 

and had been advised that the trial court in the case at bar had no 

jurisdiction to enter the injunction order. It further stated: 

o o o for the reason that in the exchanges set forth in 

the agreement, Maurice J. Sherow does not have any 

interest in either the Arlington building or the 
Spaulding building. 

Subsequently plaintiff filed a petition to intervene in the Rich suit. 

Defendant claimed that he had an interest in that controversy. The lower 

court held in favor of defendants. However, this ruling was reversed on 

appeal. Thus the actions of defendants on different occasions show that 

they did not intend to include Arlington and Spaulding in the contract. 

Defendants next contend that the exchange contract would be 

incomplete if Arlington and Spaulding are not included as the consideration 

to be given the estate of Harry Hirsch. Defendant reasons that the estate 

would receive nothing for the two interests in the properties which were 

to be conveyed to plaintiff and the five interests in other parcels of 

property which were to be conveyed under the exchange agreement. In support 

of their contention defendants point out that paragraph 2 of the contract 


Each of the parties hereto respectively agrees that he 
will exchange his respective fractional interests as aforesaid, 
for other fractional interests of the other parties hereto, in 
accordance with Schedule C attached and made a part hereto, and 
that he will pay such additional sums of money, plus or minus 
any net prorations as provided herein, as may be necessary to 
effect and equalize such exchange or exchanges in accordance 
with Schedule C-1 and G-2 (Emphasis supplied). 

At the outset the above reference to Schedule C-2 does not mean that 

Arlington and Spaulding were to become part of the exchange contract, but 

only that prorations were to be made in accordance with the figures found 

on that schedule. 

In answer to defendants' contention, the consideration need 

not flow from the plaintiff to the Trustees, Once it is apparent that the 

Trustees have received consideration for the surrender of their property, 

then the Sherow contract is binding. It is no objection that the 


consideration does not flow directly from plaintiff. By the terms of the 

agreement, The Trustees surrendered all their interests in face of the 

eight exchange properties, some going to plaintiff and some going to the 

Hirsches as individuals. In consideration, plaintiff surrendered to the 

Hirsches as individuals, property of a value equal to the property he 

received from the Hirsches, both as Trustees and as individuals. By this 

exchange, the Hirsches, as individuals, got the benefit of conveyances of 

property by themselves as Trustees, for themselves as individuals. The 

Trustees directed plaintiff to accept certain property interests and 

plaintiff paid for them by conveying exchange properties to the Hirsches, 

as individuals o The consideration for the property received by plaintiff 

from the Trustees was the benefit conferred on the Hirsch individuals. 

Upon his fulfillment of the obligations of the contract, there was full 

consideration paid to the Trustees, even though no exchange property went 

directly to them. The benefit conferred by plaintiff on the Hirsches at 

the direction of the Trustees was ample consideration for the Trustees' 

conveyance of the decedent's property. 

The governing rule of law is stated in Illinois Law and 

Practice, Vol. 12, Sec. 92 on Contracts, as follows: 

A benefit to a third person constitutes a sufficient 
consideration for a promise or agreement, and under this 
rule one receiving consideration from another for a promise 
for the benefit of a third person is liable on the promise 
to such third person although the latter furnishes no 
consideration. As stated in several cases, 'privity or 
consideration between a promisor and a third person, who 
is a beneficiary, need not exist to support the promise, 
provided there is a valuable consideration for the promise 
as between the principal parties to the undertaking. ' 

This rule was applied by the courts of Illinois in a recent case. Riddle 

V. LaSalle National Bank . 34 111. App.2d 116, 180 N.E.2d 719 (1962). 

There a loan was made to the Second Timothy Missionary Baptist Church, 

and as security for the note, a mortgage was given by James M. Stone, who 

was the pastor of the church. The mortgage was on the home property of 

James M. Stone and his wife, Mary. The loan not being paid, foreclosure 


was started on the property of the Stones, The defense was lack of 

consideration moving to the Stones. The court overruled such defense, 

stating on page 119: 

. . , a mortgage may be given to guarantee the debt 
of another, and if he or the mortgagor benefits thereby 
there is sufficient consideration for the mortgage. 59 
CJS Mortgages, sec. 90, The consideration for a mortgage 
need not move directly from the mortgagee to the mortgagor. 
The consideration may consist in a loan to a third person. 
If, at the mortgagor's request, any detriment, loss or 
damage is sustained by the mortgagee or if any advantage, 
profit or benefit is conferred on or accrues to the 
mortgagor, there is sufficient consideration to support 
the mortgage. II Jones, Mortgages, 8th ed., sec, 751; 
36 Am, Jur. , Mortgages, sec, 61; I Reeve, Illinois 
Mortgages and Foreclosure, sec 127.... 

Finally, defendant points out that plaintiff's contention that Spaulding 

and Arlington are not part of the contract is inconsistent in that 

plaintiff considered it necessary to file an amendment to his complaint 

in order to include Arlington and Spaulding. It is plaintiff's position 

that the above properties are also capable of specific performance. This 

is the reason why the complaint was amended to include them. We do not , 

however, have to decide whether or not the Arlington and Spaulding 

properties are capable of specific performance in this decision. 

Furthermore, defendants themselves state t)iat a perusal of the 

contract shows that there is no indication as to who owns what percentage 

of two parcels of realty known only as Arlington and Spaulding, what 

interests in these properties were to be transferred or to whom they were 

to be transferred. Thus, at one and the same time defendants claim that 

the contract includes Arlington and Spaulding and further that the 

properties are not described, the ownerships are not set out, no buyer, 

seller, or agreed price is shown. We can only conclude that the contract 

^ never included these two properties. For the above reasons the decree is 

reversed, and the cause remanded with directions to enter a decree for 

specific performance of the contract of March 31, 1957, directing the 


exchange of deeds between plaintiff and defendants, and the payment of 

the sum of $13,339.81, by plaintiff to defendants. 


BURKE , P.J., and BRYANT , J . , concur , 


Plaintiff -Appellee „ 



Defend ant 'Appellant » 

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This appeal comes from a judgment entered after a bench trial 
in the Criminal Court of Cook County, Illinois on April 3, 1963 finding 
the appellant guilcy of armed robbery. Appellant was sentenced to three 
to five years in the Illinois State Penitentiary, The appellant's theory 
of the case on this appeal is that the evidence did not establish his 
guilt beyond a reasonable doubt » 

The evidence shows chat on February 7, 1963 the complaining 
witness, Herman Lee Byrd , was in the company of Pete Cummings , known as 
"Fasto" "Fast" is the brother-in-law of the appellant, Donald Harvey. 
Byrd said that he had been drinking that evening and that he met "Fast" 
at a tavern at 63rd and Drexel whereupon they each had another drink and 
then purchased a pint of gin for the two of them„ "Fast" then suggested 
that the two of them go to an apartment building at 6333 S. Drexel Boul- 
evard. This was the apartment building in which the appellant livedo 
The record does not say whether "Fast" also lived in this building. Byrd 
testified that "Fast" had asked him if he wanted change for $20.00„ Byrd 
said he did and gave "Fast" a $20.00 bill. According to Byrd, "Fast" 
kept the money and would not give him his change, A fight on the third 
floor landing ensued during which, according to Byrd, "Fast" threw him 
over the third floor bannister alongside the stairway and held him there 
by the lapels of his overcoat and sport coat. 

Byrd testified that at this point the appellant, Donald Harvey, 
came from his apartment with a knife in his hand, and that "Fast" said 
to the appellants "Let's get him." Byrd testified that the appellant 


came down the stairs and took another $20.00 out of his pocket. At 
this point, Byrd said, he slipped out of his coat and fell to a landing 
below„ "Fast" and the appellant then went into the appellant's apartment 
with the money and his two coats, according to Byrd. 

Byrd went downstairs and called the police. When they arrived 
they went up to the appellant's apartment with Byrd and the janitor of 
the buildingo No one answered the door, and the janitor let the police 
in by removing a board placed in the door to cover a hole where glass 
had originally been. The hole was large enough for the men to walk 
through it into the apartment „ One of the policemen, Joseph Thomas, 
testified that when they entered the apartment, no one was visible, but 
tha-t after a moment, Mrs. Harvey came out from a closet. The police 
then searched the apartment and found the appellant hiding under a bed. 
A knife was found in a dresser drawer in the room in which the appellant 
was hiding. 

The appellant and his wife were the witnesses for the defense. 
They testified that they heard a commotion when Byrd and "Fast" began 
fighting on the landing, Mrs, Harvey said she went out and saw the two 
men fighting and then returned to summon her husband. The appellant went 
out into the hall for a moment and stopped the fighting and then returned 
to his apartment. Shortly thereafter there was more noise outside the 
door and both the appellant and his wife returned to find "Fast" 
holding Byrd, suspended by his coat, over the third floor bannister. 
According to these witnesses, the appellant did not come to the aid of 
either party and returned to his apartment with his wife. The complaining 
witness said that the first time the appellant appeared on the scene 
was the time he took $20.00 from him at knife-point. He insisted that 
this was the only time the appellant came out from his apartment. 

The appellant argues, "The record clearly shows that Byrd and 
Fast were drinking prior to the alleged armed robbery, that they began 
to argue and subsequently to fight, and that Byrd stated that Fast took 

Twenty Dollars of his „ Certainly, with this type of background the 
uncorroborated and contradicted testimony of Byrd does not appear to be 
credible, probable or satisfactory." The appellant's brief also points 
out that neither the money nor the coats which the complaining witness 
was wearing were ever recovered., Apparently "Fast" has not been seen 
since the night in question. It is maintained that the fact that none 
of the proceeds of the robbery were ever found in the appellant's 
possession is probative of the fact that he did not take part in the 
robbery „ It is said that the only incriminating evidence found in the 
apartment was a butcher knife and that the presence of a knife in an 
apartment is not of itself incriminating. 

The People point to the fact that the appellant was hiding 
under the bed when found by the police as indicating guilt. They also 
stress that the knife was found in a dresser drawer in the room in which 
appellant was hiding and was. therefore, more suspicious than the 
average kitchen knife. 

The testimony of the complaining witness and that of the 

appellant and his wife are clearly irreconcilable. It is the law in 

this State that the positive testimony of one credible witness is 

enough to convict, even though the testimony is contradicted by the 

accused. People v. Crenshaw, et al . . 15 111. 2d 458, 155 N.E.2d 599 

(1959), People v. Soldat „ 32 111. 2d 478, 207 N.E.2d 449 (1965). We hold 

that there is nothing so inherently improbable in the testimony of the 

complaining witness as to require us to set aside the finding of the 

trier of fact. As was said m Crenshaw , supra, 

"A jury having been waived, it was the province of the 
trial court to determine the weight and credibility of the 
testimony, to resolve the conflicts therein, and to make its 
findings of guilt or innocence. In view of the opportunities 
of observation enjoyed by the trial court, its judgment 
should not be set aside by this court unless the proof is so 
unsatisfactory or implausible as to justify a reasonable doubt 
as to a defendant's guilt. [citations omitted]" 

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To the same effect see People v, Clark . 30 111. 2d 216, 195 N.E.2d 

631 (1964). 

In our opinion, the testimony of the complaining witness 
was not of such a character so as to be unworthy of belief as a matter 
of law. The judgment of the Criminal Court is affirmed. 


BURKE , P.J., and LYONS , J . , concur . 








Plaintiff -Appellee , 



Def endariL-Appel lant , 

Defendant was convicted of robbery at a bench trial and 
sentenced to one to ten years in the penitentiary „ He appeals. 

Shortly after 10,30 P„Mo on October 3, 1963, Demetra Lattos 
was returning home from her job as a waitress in a snack shop in 
Berwyn, Illinois. She was walking in an easterly direction from 
Harlem Avenue on 32nd Street and noticed a man approaching from the 
west. As the two passed, the man grabbed Miss Lattos' purse, hit her 
and said 5 "I have got a knife. Give me that purse." The assault 
occurred at the alley between Maple and Wisconsin Avenues, immediately 
below a large fluorescent street light. Miss Lattos was screaming 
during the incident. The assailant took the purse and ran northward 
into the alley. Two plainclothes detectives arrived at the scene a 
few minutes later, and che assailant was described as wearing a black 
waist-length jacket, dark trousers, a white T-shirt and no hat. Miss 
Lattos entered the officers- automobile and a search was made of the 
area. In response to a radio dispatch a short while later they proceeded 
to a gasoline service station at 26th Street and Harlem Avenue, a short 
distance from where the assault had occurred. Defendant was in the 
custody of two uniformed police officers who had stopped him for 
questioning in connection with the robbery. Miss Lattos did not at 
that time identify defendant as the assailant. The detectives and Miss 
Lattos then proceeded elsewhere in response to another radio dispatch 
and later returned to the service station at 26th Street and Harlem 
Avenue. Miss Lattos was asked if defendant was the assailant, and she 

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stated that he strongly resembled him, but that defendant's hair was 
too neat and his jacket was lighter than that worn by the assailant. 
Defendant, who was wearing a reversible jacket, was made to reverse his 
I jacket to the dark side, his hair was messed and he was told to repeat 
the words spoken by tne assailant during the assault. Miss Lattos 
immediately identified defendant as the assailant. Defendant was 
searched and $27.00 recovered from his person, the exact amount in Miss 
Lattos- purse when it was stolen, the denominations of the bills were 
also identical to che denominations of the bills in the purse, 

Eugene Spolar , who resided at 3105 Maple Avenue in Berwyn, 
testified that about 11:00 P.M. on the night, in question he heard 
woman's screams coming from the vicinity of the alley between Maple and 
Wisconsin Avenues at 32nd Street, He went into his back yard and heard 
someone running northward on Wisconsin Avenue, The running slowed to 
a walk and the witness saw a man walking northward wearing a dark 
jacket, Wtien the man reached the corner of 31st Street and Wisconsin 
Avenue 5 he turned and proceeded westward on 31st Street, At the same 
time Mr, Spolar went to the 31st Street end of the alley in an effort 
to see who the man was. The man walked to within 50 feet of the witness, 
turned around and proceeded easterly on 31st Street toward a local park. 
At this point Mr, Spolar got his automobile and circled the park, A 
short time later he saw the same man emerge from the park combing his 
hair and reversing his jacket from the dark side to the light side; the 
man walked west toward Harlem Avenue. Mr, Spolar located and informed 
the detectives who were with Miss Lattos of what he saw and gave a 
description of the man. He later identified defendant as the man he had 
seen entering and emerging from the park. The witness testified that he 
•eould not remember whether defendant was carrying anything when he 
entered the park, but that he definitely was not when he emerged. The 
purse was later found without the money upon a search of the park. 

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Two of the four police officers involved in the investigation 
of the assault and the arrest of defendant testified for the State. 
Their testimony substantially corroborated that given by Miss Lattos 
and Mr., Spoiar„ In addition, one of the officers stated that he and 
his partner stopped defendant for questioning because defendant fitted 
the description of Lhe assailant which they had received by radio. 
Defendant was stopped at 26th Street about 11:10 P.M. while walking 
north on Harlem Avenue. 

Defendant testified in his own behalf. He stated that he left 
work about 10; 00 P.M. and stopped for something to eat. He was on his 
way to 22nd Street for a taxi cab when he was stopped by the police. 
Defendant stated he had $32.94 on his person at the time he was arrested, 
which was denied by che police officer who searched him. Defendant 
attempted to account for the $32„94 by saying that he received $10 pay 
and a $20 loan from his employer, and had arrived at work that day with 
just over $4 in his pocket. The $10 pay and the $20 loan were corrob= 
orated by his employer, who testified for defendant. Both defendant and 
his employer had past criminal records. 

Rita Bernklau^ a waitress and co-worker of Miss Lattos and a 
friend of a friend of defendant, testified thac she overheard Miss Lattos 
say she was uncertain of the identity of the assailant. The witness 
stated she did not hear the entire conversation because she was busy 
waiting on customers. In rebuttal. Miss Lattos said that she could not 
remember having made such a statement at any time. 

Defendant maintains that the testimony given by Miss Lattos 
and Mr. Spolar is not worthy of belief, for the reason that Miss Lattos" 
testimony is equivocal as to her certainty of the assaiilant ' s identity 
and for the further reason that she substantially misstated defendant's 
age in her description to the police and had failed to identify 
defendant as the assailant v^hen she was at the service station the first 
time. Defendant claims that the testimony of Mr, Spolar is valueless 


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for the reason that he was an amateur in criminal investigation. 

While it is true„ as defendant suggest >., that the reviewing 
court will examine the evidence in a criminal case and will reverse the 
conviction if it is so unreasonable and unsatisfactory as to raise a 
reasonable doubt ao to the defendant ^'y guilt,, the finding of the trier 
of fact as to credibility of the witnesses is entitled to great weight. 
People V, Dawson. 11 Illo2d 260 ZS'^o The record m the case at bar 
does not indicate that the trial judge was in error in believing the 
State's witnesses and disbelieving the detendant's witnesses. 

The instances characterized by cefendant as "equivocal 
test;|iimony" on the ^.a-t of Miss Lattos are . o mure than direct answers 
given to direct questions. She was asked whether she had ever told any- 
one bhe was uncertain of the assailant s identity j to which she 
answered that she did not believe so and that she could not remember 
ever having made such a statement. None of the questions went to 
whether Miss Lattos ever in fact entertained an uncertainty as to the 
assailant's identity. On the contrary. Miss Lattos stated on cross- 
examination that, as far as she knew, she had never entertained a doubt 
as to defendant -s guilt. She further stated that, while she could not 
say that she was ever uncertain^ she was definitely certain of 
defendant '■' s guilt when his jacket was reversed and his hair messed. 
Miss Lattos testified that she remembered the voice of the assailant and 
still remembered it at trial. 

Miss Lattos- statement at trial that defendant did not look 
as young as she originally thought him to be does not substantially 
impair her credibility,, in view of the immediate and positive identi- 
fication of defendant as the assailant after his jacket was reversed 5 
his hair messed and he., on request, spoke the words used by the assailant 
The mere fact that she identified defendant as the assailant the second 
time she viewed him at the service station at 26th Street and Harlem 

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Avenue , rather than Che first time, does not in;pair her credibility. 
Miss Lattos stated at the trial thai she wanted '. o be certain of the 
lesser facts before she attempted a positive identification, indicating 
that the delay was occasioned simply by cau:ion. Nothing m the record 
indicates Miss Lattos enter t^iined any doubt that defendant was the 
assailant „ 

Defendant theorizes that Mr „ Spolar .-j ev. dence is valueless 
because he was a private citizen untrained m police investigation,, 
and that his identification of defendant as the naAi ne saw entering and 
emerging from the park is queL>t lonab^e because Mr, Spolar felt "his job 
is not complete until conviction is obta.ined„" T.'.e matters testified 
to by Mr. Spolar, which ^eze promptly repO'ited o the police, needed no 
special training to observe^ Furtherm.ore the record in no way indicates 
that Mr. Spolar ■ s actions were any other than "ri-.o^e of a private citizen 
performing his civic duty„ 

Tne facts testified to by the State "s /v/itne&ses create a full 
picture of the crime and the subsequent apprehension and arrest of the 
assailant o We cannot say the matters raised by defeadant m any way 
impair the credibility of the State'-'s witnesiseB so as to raise a 
reasonable doubt as to his guilt. 

The judgment is affirmed, 


BRYANT, J„ , and LYONS, J.„ coficur„ 




da r.A^~^jJj) 

Plaintiff -Appellee , 







Defendant -Appellant . 

Defendant was found guilty of theft from the person at a 
jury trial and sentenced to two to ten years in the penitentiary. He 

About 2:00 A.M. on June 2, 1963, Officers Billy Butler and 
Robert Pocius of the Chicago Transit Authority police force were riding 
a northbound elevated train in Chicago. No seats being available, the 
officers were standing in the center aisle of the coach. Occupying 
the seat immediately in front of the officers was the defendant , who 
was sitting with his left side next to the window, and a Mr. Peters, 
who was sitting next to the aisle and to the right of the defendant. 
Occupying the seat immediately in front of the defendant and Mr. Peters 
was the complaining witness, Mr. Jackson, who was also sitting next to 
the window. Both Mr, Jackson and Mr. Peters were asleep. 

Officer Butler testified that he observed defendant extract 
a wallet with his left hand from Mr. Jackson's left hip pocket by 
reaching through the opening between the seat and the coach wall, and 
at the same time extract a wallet with his right hand from the left hip 
pocket of Mr, Peters, As defendant was retracting his hands, Qfficer 
Butler announced he was a police officer. Defendant thereupon threw 
the wallet in his right hand out of the coach window, and was about to 
throw out the wallet in his left hand when Officer Butlej: grabbed his 
left wrist and the wallet fell to the floor. The wallet was recovered, 
defendant was placed under arrest, and he and Mr, Peters were removed 
from the train. The train proceeded northward before Mr. Jackson, who 


was still asleep, could be removed. Mr. Jackson was later notified of 
the incident and identified his wallet. 

The testimony of Officer Pocius was substantially the same as 
that given by Officer Butler. The witness also testified that he not 
only observed the incident directly, but also observed it by way of 
reflection in the coach window which acted as a mirror in the nighttime, 

The defendant offered no evidence in his behalf. 

The trial which resulted in the conviction of the defendant 
was the last of three jury trials of this cause. The first trial 
resulted in a deadlocked jury on September 26, 1963, The second trial 
resulted in a mistrial on motion of the defendant on March 3, 1964, 
before the jury reached a verdict. Prior to the third and last trial 
of June 15, 1964, defendant filed a motion for discharge from custody 
pursuant to Section 103-5 of the Code of Criminal Procedure of 1963, 
commonly known as the Fcjurth Term Act, on the ground that more than 120 
days had elapsed between his last continuance of February 10, 1964 and 
the date of his June 15th trial. 111. Rev. Stat. 1963, Chap. 38, Par, 
103-5. The motion for discharge was denied. 

Defendant first contends that his motion for discharge should 
have been allowed for the reason that the mistrial of the second trial 
was the result of errors committed by the trial court, rendering the 
second trial a nullity in that it was not a "fair trial" as required by 
Section 9 of Article 2 of the Illinois Constitution; defendant argues 
that the 120 days of the Fourth Term Act began to run as of February 10, 
1964, and was not interrupted by the declaration of the mistrial on 
March 3rd, and therefore more than 120 days elapsed between February 
10th and June 15th. We are of the opinion that the declaration of the 
mistrial on March 3, 1964, on the motion of the defendant, interrupted 
the running of the Fourth Term Act, and that the 120 days began to run 
anew from that date. 

Section 103-5 of the Code of Criminal Procedure of 1963 


provides that a defendant shall be tried within 120 days of the date on 

which he was taken into custody. An exception is made, however, where 

a delay extends the time to more than 120 days, and the delay is 

occasioned by the defendant. 111, Rev. Stat, 1963, Chap. 38, Par. 103-5 

(a). In the instant case, not only did the defense counsel take part in 

the discourse between the court and defense counsel in the jury's 

presence which served as the basis of the mistrial of March 3, 1964, 

but the motion for the mistrial was granted at the instance of the 

defendant. The delay having been occasioned by the defendant, he is in 

no position to complain. See People v, Hamby , 27 111. 2d 493, The cases 

of People V. Gilbert, 24 111, 2d 201, and People v, Jonas, 234 111. 56, 

cited by defendant in support of his position are not in point. 

Defendant next maintains that the trial court erred in 

refusing to give defendant's instruction number 5, relating to the 

impeachment of witnesses. Officer Butler testified at the first trial 

that he recovered the wallet of Mr. Jackson from the left hand of 

defendant, while at the third trial he stated that he grabbed the left 

wrist of defendant and the wallet was dropped or fell to the floor and 

was then recovered. Not only is this alleged discrepancy a trivial one, 

but on cross-examination of the officer at the third trial the following 

occurred after defense counsel pointed out the alleged discrepancy to 

the officer: 

"Q. Now, do you wish to revise your testimony as to that now? 
"A, No, Like I said, I would still consider the fact that I 
recovered the wallet from his hand because it was in his hand 
at the time that I placed him under arrest even though he did 
drop it to the floor." 

As specifically noted by the trial judge when he refused defendant's 

instruction number 5, any alleged inconsistency between the testimony 

given by Officer Butler at the two trials was cured by his explanation 

at the third trial of what he meant by "recovered from defendant." The 

refusal to give the instruction was not prejudicial to the defendant. 


Defendant further complains that the cross-examination of 
Officer Pocius was unduly restricted by the trial court. The matters 
raised by defendant in support of this contention are not supported by 
the record. 

The trial court refused to allow the defense to ask Officer 
Pocius, on recross -examination, whether he testified at the first trial 
that the wallet was recovered from defendant's hand. It is difficult 
to see how this could prejudice defendant, since the alleged discrepancy 
is trivial and was explained by Officer Butler who testified before 
Officer Pocius, and since Officer Pocius admitted that the police report 
of the incident prepared by him stated that the wallet was recovered 
from the floor , 

The trial court also denied the defense the use of photographs 
and drawings of theele/ated train coaches. The defense, by their use, 
sought to totally impeach the testimony of the two officers as to what 
they stated they saw, on the grounds that the pictures showed that it 
was physically impossible to observe what the officers testified to„ 
Defendant's offer of proof in no way indicates that the position from 
which the photographs were taken was the same position occupied by the 
officers at the time of the incident. While the offer of proof deals 
solely with impossibility of observation by way of reflection in the 
coach window, no indication is given that the angle of reflection 
portrayed in the photographs is the same as that experienced by Officer 
Pocius at the time of the incident, nor does the offer of proof intimate 
that the lighting conditions were identical. Furthermore, defense 
coTuinsel stated that it was a possibility that the officers saw what 
they testified tOo The use of the drawings and photographs would have 
served only to confuse the jury on these matters. 

The trial court also refused to allow the above photographs 
and drawings to be used by the defense to "help Officer Pocius refresh 
his memory" as to the physical characteristics of the train coach. From 


the record it does not appear that the officer needed to have his 

memory refreshed on this matter. 

Defendant's contention that the tri?l court improperly refused 
to allow defendant's motion to exclude witnesses at the outset of the 
third trial is unfounded. The motion of defendant was not denied, but 
was in fact allowed. After the motion was made, the assistant state's 
attorney moved that one police officer, Officer Pocius , be allowed to 
remain in the courtroom to aid the State with its case. Not oply is 
this standard procedure in the Circuit Court of Cook County, Criminal 
Division, (People v. Miller, 26 111. 2d 305, 307,) but the defense 
neither objected to the State's request, nor requested that Officer 
Pocius be called as a witness before Officer Butler, nor made any 
comment concerning the presence of Officer Pocius in the courtroom until 
the officer was cross-examined, and then only after two witnesses had 
already testified for the State, 

The other matters raised by the defendant have been 
considered and found to be without merit. 

The judgment is affirmed, 


BRYANT, J., and LYONS, J., concur. 


( ^Ti^ /\^ ^Tsl) 

PEOPLE OF THE STATE OF ILLINOIS, ) ^^^^^ ^^^^ ^^^ ^^^^^^^ 

Plaintiff -Appellee, ) 

V. ) 



Defei.dant- Appellant . ) 


This is an appeal from a judgment of guilty of attempted 
robbery entered March 13, 1964 in the Criminal Court of Cook County, 
Illinois. The appellant was sentenced to the Illinois State 
Penitentiary for two to five years. The theories advanced on this 
appeal are first; that defendant was denied a fair trial by virtue of 
the incompetency of his counsel and that he has, therefore, been denied 
due process of law in violation of the Fourteenth Amendment to the 
Constitution of tne United States , and second, that the evidence failed 
to prove defendant -s guilt beyond a reasonable doubt. 

According to the testimony of Daniel Scanlan, the officer who 
arrested the appellant, he was part of a police detail which operated in 
the area known as "Skid Row." The purpose of this detail was to cut 
down on the number of robberies practiced on those who were too drunk 
to defend themselves. This officer was dressed in businessman's clothes 
and testified that he was staggering down West Madison Street as though 
he were drunk. He said that by pre-arranged plan, he would turn into 
the side streets to see if anyone would try to rob him. His testimony 
was that when he turned into Peoria Street, the appellant, William 
Collins, grabbed him and began going through his pockets. The appellant 
is reported to have asked, "In what pocket do you carry your money?" 
At this time Scanlan announced he was a police officer, and he testified 
h that the appellant tried to run away. He was subdued and taken into 
custody by Scanlan and another officer, James Fruin. The appellant was 
represented at his trial by a counsel of his own choosing. He was tried 
by the Court, a Jury having been waived. 



We hold that the evidence supports the finding of the Court 
that the defendant is guilty of attempted robbery beyond a reasonable 
doubt „ The arresting officer gave a clear statement of the acts which 
led to the arrest of the appellant. It is the settled law that the 
testimony of one credible witness is enough to convict. People v . 
Crenshaw et al . . 15 111. 2d 458, 155 N.E.2d 599 (1959), People v . 
Soldat ,. 32 Ill,.2ci 478, 207 N„E.2d 449 (1965). We will not set aside the 
finding of a trier of tact unless the findings are clearly against the 
manifest weight of the evidence. People v. Crenshaw , supra, People v . 
Clark, 30 111. 2d 2I03 195 N.E.2d 631 (1964). We hold, therefore, that 
the finding of guilty entered by the trial court must be affirmed. 

The other point raised by the appellant here is that the 
quality of his defense was sc poor that he was, in fact, denied a 
meaningful trial, and that the proceedings were, therefore, contrary to 
the Fourteenth Amendment. While his counsel conducted cross -examination 
of the two witnesses for the People, he made no opening or closing 
statement and he did not put any witnesses on the stand for the defense. 
Does this amount to incompetence? We think not. Apparently the only K 
witnesseF to the incident were the police officers and the accused, and 
it is not suggested that the appellant had an alibi. Counsel for the 
appellant brought appellant's mother and sister to testify at the hearing 
in mitigation and aggravation. He argued earnestly for a lower sentence 
than that handed down by the Court. In People v. Olmstead , 32 111. 2d 
306, 205 N.E.2d 625 (1965) the Supreme Court was faced with a problem 
similar to this. There the Court said, "Nor do we believe that the 
failure to make oral argument before the judge or the failure to introduce 
g evidence indicates that counsel did not adequately represent defendant.,.. 

Proper legal representation does not require the manufacturing of a 


~ defense when there is none, or the obfuscation of facts." The record 

in this case strongly indicates that the appellant attempted to rob a 



policeman and that there was at least one other police officer who 
witnessed the event. There is no basis for defendant's contention 
that his counsel was incompetent in his representation of defendant 
The judgment is affirmed. 


BURKE 3 P J . , and LYONS „ J . , concur „